Do I have to take an alternative role if my role is made redundant?

After a second period of maternity leave (one year), I returned to work only to be put on ‘consultation’ that day. I have been advised that my role is being made redundant. I work three days a week and in the initial meeting, work were unable to confirm if any of the roles were available at these hours. They have subsequently come back to say that they are ‘open to discussing’ whether one of the roles could be scaled to part-time hours. The redundancy package is good. Am I obliged to apply for this role? If it is offered, am I obliged to take it and if I do not, will the redundancy package still be open to me? I do not feel they have handled this process very well with a consultation period of only a week.

I note from your question that when you returned from maternity leave your employer informed you that you were being put on ‘consultation’ that day as your role was being made redundant. What is not clear from your question is whether the redundancy situation existed before you returned to work and whether your employer should have made you aware of this already. You may have a claim for pregnancy/maternity discrimination if the redundancy situation existed whilst you were on maternity leave but you were not informed/consulted about the redundancy situation because you were absent on maternity leave.

Assuming, however, that the redundancy situation has only arisen upon your return from maternity leave, a dismissal due to redundancy is likely to be unfair if your employer does not follow a fair and reasonable process and this will include your employer giving consideration to whether suitable alternative employment exists. However, on the other hand, if you unreasonably refuse suitable alternative employment, you would lose your right to a redundancy payment. The main question for you to consider is thus whether the roles offered to you are in fact suitable alternatives.

Whether or not the new job role will be regarded as suitable and appropriate will not just be concluded simply by the job title. A tribunal would consider your skills and experience and whether these meet the requirements of the new job offered. When making an objective assessment of the suitability of alternative employment a tribunal would consider the terms of the alternative job and how they compare with your previous role.

From your question I see that you were working part time prior to going on maternity leave. I also note your employer has stated that they are ‘open to discussing’ whether one of the alternative roles could be ‘scaled to part-time hours’, yet give no clear clarification of this. If the alternative employment is on a full-time basis then it would be harder for your employer to argue that this is a suitable alternative and would be easier for you to argue that your refusal of such an alternative role was reasonable in the circumstances and that you are therefore still entitled to your redundancy payment.

I also understand that you feel your employer has not handled the process well and has only given a consultation period of one week. A tribunal would consider the manner in which an employer makes an offer of a suitable alternative job and the manner in which the employee responds. A tribunal may find it reasonable for an employee to refuse a job if they are not given sufficient time to consider it or if the employee reasonably doubts the employer’s motives in making the offer. If you are unsure about whether or not to accept the role offered to you, I would strongly advise you to take further specific legal advice because as stated above, if you refuse a suitable offer, your subsequent dismissal for redundancy is likely to be fair and if you unreasonably refuse the offer, you would lose your right to your redundancy payment.

If none of the jobs offered are suitable then your employment would come to an end by reason of redundancy. You would still be entitled to your notice period and a redundancy payment provided you have sufficient qualifying service.

You should bear in mind that you may have various potential claims against your employer due to the manner in which you have been treated. In this regard, if the process has been unfair, you would have a claim for unfair dismissal. If this is not a genuine redundancy situation and in fact the only (or principal) reason for your dismissal or for your selection for redundancy is related to pregnancy, birth or maternity leave, your dismissal would be automatically unfair. Furthermore, you may also have a claim against your employer for pregnancy/maternity discrimination if you feel you have been treated unfairly in relation to the above issues because you were on maternity leave. Any such claims should be submitted to an employment tribunal within three months of your dismissal/the discriminatory act.

If you would like further advice regarding any of the points discussed above then please contact Tracey Guest on 0161 975 3823.